COURT FILE NO.: 444/09

DATE: 20091124

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

JOANNE MARTIN, CORRINE MIDDLETON and DON MARTIN

Plaintiffs/Respondents

• and -

ASTRAZENECA PLC, ASTRAZENECA PHARMACEUTICALS, LP and ASTRAZENECA CANADA INC.

Defendants/Moving Parties

James C. Orr, Megan B. McPhee and Alexa Sulzenko for the Plaintiffs/ Respondents

F. Paul Morrison and Frank J. McLaughlin, for the Defendants/ Moving Parties

HEARD at Toronto: November 24, 2009

lederman J.: (Orally)

1The issue before the Motions Judge, Cullity J., was whether the defendants should be permitted to move for summary judgment before the hearing of the plaintiffs’ motion for certification.

2The defendants argued before the Motions Judge that it would be beneficial to have the issues of specific causation as they relate to the claims of the plaintiffs, dealt with by way of summary judgment motion prior to the certification motion.

3The Motions Judge did not agree and held that in terms of timing, the certification motion should be the first procedural motion heard and decided. The defendants seek leave to appeal that interlocutory order.

4In order to meet the test for leave, the defendants must satisfy the two branches found within either Rule 62.02(4)(a) or the two branches within subrule (b).

5Under subrule 62.02(4)(a), it is required to show that there are conflicting decisions.

6The defendants submit that contrary to cases like Stone v. Wellington County Board of Education (1999), 120 O.A.C. 296, Hughes v. Sunbeam Corp. (Canada) Ltd. (2002), 61 O.R. (3d) 433 and the Motions Judge’s own decision in Ragoonanan Estate v. Imperial Tobacco Canada [2005] O.J. No. 867 the effect of the Motions Judge’s decision is to preclude summary judgment motions relating to the validity of the particular claims of the representative plaintiff in advance of the certification motion, and allows plaintiffs with no claims to maintain an action and act as a representative plaintiff.

7The Motions Judge considered the general rule, which was not disputed as, articulated in Attis v. Canada (Minister of Health), [2005], O.J. No. 1337 and Baxter v. Canada (Attorney General), [2005] O.J. No. 2165, that, as a matter of principle the certification motion should be disposed of in advance of any other preliminary motions including those for summary judgment.

8The Motions Judge acknowledged that it was not an absolute inflexible rule and that there are circumstances where it is useful and necessary to have the summary judgment motion proceed first.

9The application of the general rule may give rise to different results in different circumstances since it is to be applied on a case-by-case basis in the exercise of judicial discretion.

10The Motions Judge pointed out that there may be an exception to the general rule and that motions for summary judgment may well take priority in circumstances where such motions would determine a discrete issue of law that potentially affects the claims of all class members and would likely lead to abandonment or settlement of the claims, or at the least, narrow the issues for trial.

11Here, the Motions Judge was of the view that, as the motion for summary judgment would be directed to the factual merits of the plaintiffs’ claim, i.e. the question of specific causation, such a motion would not dispose of discrete issues that would be applicable to all class members and would not serve the objectives of the Class Proceedings Act (CPA) of litigation efficiency and reducing costs. Moreover, he noted that the CPA does not contemplate a preliminary merits test and that questions of causation affecting the claims of the plaintiffs and other class members are best left to the end of the case, if and after certification and a decision on the common issues in favour of the class.

12In so finding, the Motions Judge was exercising his discretion on the particular circumstances of the case before him and he was not in conflict with the general principles established in the jurisprudence, and therefore his decision is not a conflicting decision (see Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), O.J. No. 652). Rather, in terms of priority of motions, each case turns on its own facts.

13The test under Rule 62.02(4)(a) has not been met.

14As for subrule (b), the issue before the Motions Judge was one of timing of motions and he was not deciding substantive rights. Decisions of senior class proceedings judges are entitled to substantial deference given the special expertise they have developed. This is particularly so with respect to case management decisions and the timing of procedural motions which involve the weighing of factors and the balancing of the objectives of the CPA.

15As the Case Management Judge, the Motions Judge was entitled, without evidence, to rely on his knowledge of the history of the proceedings, the representation of counsel and more importantly, his own experience about the likelihood of the substitution of representative plaintiffs, and expert evidence to respond to a summary judgment motion. Here, he was able to rely on his own experience in the Ragoonanan case to recognize the costs and the lack of utility that may result from a fact-based summary judgment motion being heard in priority to the certification motion.

16Given this deference to CPA Case Management Judges and the factors that the Motions Judge took into account, there is no reason to doubt the correctness of the decision.

17Moreover, as the Motions Judge was acting within the parameters of the general rule governing priority of motions, the actual decision in this case does not transcend the private interests of the parties and raises no matters of general importance to the administration of justice.

18Therefore the test under Rule 62.02(4)(b) has not been met. The motion is therefore dismissed.

COSTS

19I have endorsed the Record to read: “For oral reasons delivered, the motion is dismissed. The plaintiffs will have their costs fixed at $7,500.00.”

LEDERMAN J.

Date of Reasons for Judgment: November 24, 2009

Date of Release: December 7, 2009

COURT FILE NO.: 444/09

DATE: 20091124

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT